Quiet For a Time, Property Movement Roars Back to Life

Scant legal basis matters little to bold claims of self-interest

July 14, 2003 | Great Lakes Bulletin News Service

Chuck Glass

Competing zoning proposals to oversee construction along the high sand bluff that lies along Lake Michigan in Emmet County were prompted by a landowner who built an expensive switchback driveway down the unstable slope, and three instances in which the bluff caved in.

PETOSKEY, MI — A clash here this summer over how strictly to manage construction along one of the state’s most beautiful coastlines illustrates a new and potentially troubling dimension in the struggle over private property rights that is influencing every level of government in Michigan.

At issue before the Emmet County Planning Commission were differing zoning proposals to manage construction along the high sand bluff that lies between Lake Michigan and Emmet County’s route M-119, the famed ‘tunnel of trees’ that winds north from Harbor Springs to Cross Village. The two proposals, which have evolved over the past year, were prompted by a wealthy landowner who built an expensive switchback driveway down the bluff. In three more instances, the bluff itself caved in, with tons of sand and the rear of a multi-million dollar home collapsing onto the Lake Michigan beach.

One of the zoning proposals, supported by a majority of citizens present at the June planning commission meeting, would explicitly prohibit construction on the face of the bluff. The other proposal, roundly denounced at the meeting, is much weaker and would allow construction on the bluff if certain requirements meet the planning commission’s approval.

Public Supports Strong Measure; Commisioners Don’tDespite the public’s overwhelming call for strong restrictions, the commission voted 8 to 1 to approve the weaker ordinance that essentially enables a property owner with enough money or political connections to develop the bluff. The reason: Planning commissioners considered prohibitions on developing the bluff to be a violation of private property rights. “It’s a taking,” said Jack Jones, a commission member who was particularly vocal in asserting the “property rights” argument.

Denise Simon, who owns land along the bluff and was the sole dissenting vote, was frustrated by the outcome. “Some of the commissioners have an overly conservative view of what a taking is. In fact, the county’s own civil council supported a more protective ordinance,” said Ms. Simon, in an interview with the Great Lakes Bulletin News Service. “Property rights was a dominating factor for a couple of commissioners.”

What happened here reflects the increasingly prominent role that “property rights” is playing in shaping policy in Emmet County and throughout Michigan. The cry of “property rights” and “takings” has become the three-word, shorthand argument for citizens and elected leaders to bring public debate to an abrupt close and derail local zoning proposals, environmental protection measures, neighborhood revitalization programs, affordable housing projects, and other civic improvements.

Property rights advocates also are ready to pounce on the Legislative recommendations of Governor Jennifer Granholm’s Michigan Land Use Leadership Council. The 26-member task force is set next month to make recommendations to change how Michigan manages the urban, suburban, and rural landscape in order to curb sprawl.

“If you don’t protect private property rights, you’re going to have a hard time in a lot of the other areas,” said Republican House Speaker Rick Johnson, one of the movement’s foremost supporters.

A Question of Liberty; Where’s The Legal Beef?But legal scholars and environmental advocates counter that property rights rhetoric has scant basis in law and has instead become code for opposing most government action that advances the common good. Landowners who cite property rights argue, essentially, that if government agencies restrict any use of their land, no matter how harmful that use may be, taxpayers must compensate property owners for the land’s diminished value, even if the land has other economic uses.

Following that logic, a property owner could sue over basic zoning law. The Supreme Court has explicitly and consistently rejected such an interpretation in cases dating to the 1920s. “Private property rights don't mean being able to do whatever you want on your property,” said Scott McEwen, a water policy specialist with the Tip of the Mitt Watershed Council, an environmental organization in Petoskey.

Property rights advocacy is rooted in the Takings Clause of the Fifth Amendment to the Constitution, which states that private property shall not “be taken for public use, without just compensation.” The phrase was specifically meant to apply only to actual land or private property seized by the government for roads, military installations, or other public purposes.

But the phrase has been reinterpreted by conservative lawyers and activists to embody the heart of American freedom for some people, who see property rights as the foundation of all other liberties.

“The recognition of private property protects other freedoms. Having the right to enjoy our property is an important barrier against an abuse of police power. It’s what sets our government apart from several tyrannical governments,” observed Brian Warner, a member of the Michigan Land Use Leadership Council and long-time property rights advocate who also asserts he is an environmentalist.

“Environmentalists need to respect and realistically try to address the concerns of people of good will who are concerned about the erosion of property rights.”

Property rights advocates say the erosion in liberties principally results from community restrictions on new development. Local zoning measures, for instance, restrict where new buildings can be constructed and their size. Environmental statutes set limits on development in natural areas. The property rights movement’s concern is that government asserts a measure of control that infringes on fundamental freedoms. In essence, the clash over property rights pits an individual’s authority to exert their influence against the community’s authority to safeguard the common good.

What the Supreme Court SaysBalancing those goals is as old as the American republic. The balance in Michigan, though, has clearly tilted in favor of self-interest. The problem, say land use and environmental advocates, is that there is no legal foundation for the tilt.

According to the interpretation of the Constitutional Takings Clause currently held by the U.S. Supreme Court, even the strictest bluff protection ordinance proposed in Emmet County would not constitute a violation of private property rights. In April 2002, the Supreme Court decided in a case involving development along California’s Lake Tahoe that a taking only occurs when a regulation diminishes all or “essentially” all of the value of the property. If the land affected by a regulation does not constitute the entire economic value of a person’s property, it is not a taking.

Under the Supreme Court ruling, the proposed Emmet County ordinance, which restricts the authority of a landowner to destabilize the bluff, is not a taking. In fact, the ordinance would protect the property of all the landowners along the bluff because it would prevent construction that could lead to more collapses.

The Supreme Court specifically noted this argument in the Lake Tahoe case. The court affirmed that landowners share what it called “reciprocity of advantage.” Although a regulation may be a burden to property owners, they share this burden equally with their neighbors in the interest of the common good. Since the economic value of Lake Tahoe property is based on the lake’s natural beauty, regulating development on the lake protects property values in the long run.

“The Founding Fathers recognized that reasonable regulations applied across the entire community produce not only burdens but corresponding benefits that help all landowners,” said John Echeverria, executive director of the Georgetown Environmental Law and Policy Institute, and a national authority on property law.

A Legal Foundation Tilted to Self Why then, ask environmentalists, have landowners and lawmakers who advocate property rights gained so much influence in decisions affecting the management of land, environmental regulation, and the development of natural resources? The answer, say scholars, is that property rights advocates are tapping a wellspring of disenchantment with government, and the rise of self interest as a virtue in the United States. The movement has been further emboldened by the election of President George W. Bush, who embraced property rights rhetoric during the 2000 presidential campaign.

“They are tapping into a real sentiment of dissatisfaction in America,” said Harvey M. Jacobs, a professor of urban and regional planning and environmental studies at the University of Wisconsin in Madison. “Common people in the rural landscape oppose the power of centralized government regulation. The turning point was the movement’s ability to put those common people in the front of the movement and have them tell the story of oppressiveness in government regulation.”

But Mr. Jacobs and other experts noted that the energy, development, real estate, and home building industries that support the property rights movement have uncommonly large financial reserves. Weakening existing environmental and land use statutes, and blocking new safeguards provides developers much easier access to valuable land, oil, timber, water, and other natural resources.

Indeed, Michigan campaign finance reporting data shows that property rights proponents include some of the most financially influential political action committees. The Michigan Realtors PAC, for example, donated a total of $676,726 to political campaigns in 2002, according to the Michigan Campaign Finance Network.

“The Takings Clause is a Constitutional provision that has a particularly well-heeled advocacy organization behind it,” observed Mr. Echeverria. “Developers and resource companies around the country for more than a decade have been pouring millions of dollars into litigation over takings claims, political advocacy to advance the takings agenda, and on public education efforts designed to advance their extreme reading of the takings law. There's a very large and well-organized, well-financed effort to push the takings clause beyond what the drafters of the Constitution ever intended.”

Sarah Morris, a student at Haverford College, joined the Institute’s news desk this summer under the Haverford College Peace and Global Citizenship Program. This is her second article for the Great Lakes Bulletin News Service. Reach her at morris@mlui.org.